Former federal appeals judge, solicitor general and failed Supreme Court nominee Robert Bork, who died Wednesday, is being remembered as both a conservative legal trailblazer and a divisive nominee who set the contentious tone of high court confirmation hearings ever since.
"Robert Bork was one of the most influential legal scholars of the past 50 years," Justice Antonin Scalia said in a statement sent to the press not by the court itself, but by CRC Public Relations, which handles publicity for the conservative Federalist Society. Scalia continued, "His impact on legal thinking in the fields of antitrust and constitutional law was profound and lasting. More important for the final accounting, he was a good man and a loyal citizen. May he rest in peace."
President Ronald Reagan nominated Bork, whose record as a conservative thinker, Yale Law School professor and D.C. Circuit appeals judge made him an appealing choice. The late former Chief Justice Warren Burger even give Bork a plug, calling him the most qualified nominee to the court in 50 years.
But his writings also gave liberal groups more than enough ammunition to portray Bork as someone who would turn the clock back on a range of issues from abortion to civil rights. He had criticized Supreme Court rulings on privacy that legalized contraception and abortion.
Though prior nominations were controversial, Bork's was viewed as a turning point that established a tradition of contentious Supreme Court confirmation hearings ever since. After a massive lobbying campaign against him, the Senate defeated Bork's nomination to replace Lewis Powell Jr. by a 58-42 vote. Anthony Kennedy, who is still on the court, eventually was confirmed for the seat.
"Robert Bork's Supreme Court appointment proved itself a watershed in the history of high court confirmations.," said David Yalof, a University of Connecticut political scientist who has written about the confirmation. "Instead of acting mostly behind the scenes, interest groups made their arguments directly to the public, turning his nomination into a plebiscite of sorts on the state of the constitutional landscape. Nominees after Bork would have to navigate this new process far more carefully, avoiding missteps or gaffes that might give fuel to one side or the other."
In his book Tempting of America, Bork said he underestimated the fierceness of the attack on his nomination by Senator Edward M. Kennedy (D-Mass.) and other liberal adversaries. "It had simply never occurred to me that anybody could misrepresent my career and views as Kennedy did," Bork wrote.
But Paul Larkin, who clerked for Bork 30 years ago on the D.C. Circuit, said Wednesday that "whatever pain he had about the nomination, he kept a lot of it to himself. He never displayed bitterness."
Larkin said Bork's clerks immediately became part of his extended family, holding warm and friendly reunions. "He was a person to us that he wasn't to the public." Larkin remembered a routine contracts case in which Bork pressed his clerks hard to help him "do the right thing, because these are real people involved."
Anger over Bork's treatment at the 1987 hearings fueled the establishment of the Federalist Society, while Bork's continued scholarship on "originalism" helped establish it as a prevailing doctrine of interpretation in many high court decisions.
"Judge Bork helped critically in the founding of the Federalist Society, and his career combined the life of the mind with the life of action," said former Bork clerk Steven Calabresi, a founder of the society, on Wednesday. "Welcome to Robert Bork's America," a recent article in Commentary Magazine exclaimed.
Heritage Foundation scholar Todd Gaziano said, "It is hard to think of a non-justice who had more influence on the law in the 20th century in America. It is a historical tragedy that his nomination was thwarted by a false and malicious campaign."
After losing the nomination, Bork continued to write controversial books and articles from positions at the American Enterprise Institute and the Hudson Institute. As recently as last month's presidential election, Bork was an adviser on judicial nominations to Republican nominee Mitt Romney. Liberal groups needed to do little more than mention Bork's name to argue that his role meant Romney would appoint only strong conservatives to the Supreme Court.
Before the election, a People for the American Way report portrayed Bork as a "full-time ideologue" whose presence in the Romney campaign was "a cause for public alarm that Romney wants to try once again to put Robert Bork in the driver's seat of America's constitutional journey."
Senior D.C. Circuit Judge A. Raymond Randolph, who joined the court after Bork left, also released this statement on Bork "He was a great teacher and a wise judge," said Randolph. "He was a penetrating and influential writer, a formidable advocate and a captivating speaker. Through it all Robert Bork has had a profound impact on American jurisprudence. And he has earned the country's admiration and its thanks."
Before becoming an appeals judge, Bork served as a respected solicitor general from 1973 to 1977, but he became best known during that period as the acting attorney general who was directed by President Richard Nixon during the "Saturday Night Massacre," to fire special Watergate prosecutor Archibald Cox after higher Justice Department officials refused.
Tony Mauro can be contacted at tmauro@alm.com.
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Colleagues, former clerks recall legal career of Robert Bork, who died at 85
The National Law Journal
December 20, 2012
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